In 1947, when India politically broke free of the English Raj, the sun eventually set on the British Empire. Forty-four years later, in 1991, she unshackled herself from Nehruvian socialism to marry market economy. If 1947 was about political freedom, 1991 was about economic reforms.

Some 25 years later, in 2015, if India enjoys a place under the sun, it’s due to that historic decision in 1991 - a unilateral one taken by a semi-retired politician and executed with élan by a retired bureaucrat. The result is there for all of us to see. It has always foxed me that the extraordinary transformation was brought about by a minority government, headed by a leader who lacked mass appeal.

But all that is in the past. Among the several unfinished agenda of 1991 is the one on judiciary reforms. Of course, we also need reforms in the other pillars of our society, viz the executive, the legislature and the media. More of that another day. One of the perceived first halting steps towards such reforms has come unstuck.

While the criminal justice system in India moves excruciatingly slow, while law grinds the poor and rich men rule the law, the system nevertheless works. If India is still a vibrant democracy, a good amount of credit should go to the judiciary. Now, it is nobody’s case, including the chief justice’s, that everything is hunky-dory in the corridors of justice. But the question is: “is interference of Executive the way forward?”

The Supreme Court has answered that question with an unequivocal “No.” It has, by a majority of 4:1, thrown the National Judicial Appointments Commission (NJAC) Act, 2014 in the trash can, saying NJAC interferes with autonomy of the judiciary and amounts to tampering the basic structure of the Constitution.

It’s time for you to understand why the Apex Court gave a thumbs down to a key measure of judiciary reforms.

The ‘politicians’ in the Commission

If cleared, the NJAC would have consisted of six persons: the Chief Justice of India, two senior judges of the Supreme Court, the Union Law minister and two ‘eminent’ persons. The two ‘eminent’ persons would be nominated by a committee consisting of the Chief Justice, the Prime Minister and Leader of Opposition in the Lok Sabha. Of the two ‘eminent’ persons, one would be from among scheduled castes or scheduled tribes or OBC or minority communities or a woman. The NJAC’s job would be to recommend persons for appointment as Chief Justice and as judges of the Supreme Court and of the High Courts, and also suggest names for transfer of judges from one High Court to another. The twist in the tail is that the Commission cannot recommend a person if any two of its members do not agree to it.

Now look at what that means. For one, the political class could gang up (in India despite the daggers-drawn relationship, politicians party together when it comes to saving their skin) to ensure that the two ‘eminent’ persons are men of their choice. They, along with the law minister, would constitute 50 per cent of the NJAC. If two of them veto a name, that’s enough to put the name in cold storage. It may sound like a doomsday prediction, but one cannot rule it out. India has seen worse things happen, like continuous parliament washouts over the last 11 years. Little wonder, the Court saw red at the prospects of the NJAC being split down the middle.

At present, judges appoint judges under the collegium system that has been in vogue since 1993. This practice had its genesis in three of Supreme Court judgments, collectively known as the Three Judges Cases. Over these three cases, the court stipulated that independence of judiciary means that no other branch of the state – including the legislature and the executive – would have any say in the appointment of judges. True the practice may not be perfect, but the Court seemed to suggest that you cannot throw the baby along with the bath water.

The ‘basic structure’ doctrine

The Court ruled that NJAC tampers with the ‘basic structure’ of the Constitution. This ‘basic structure’ doctrine is a judicial principle

peculiar to India that says that the Constitution of India has certain basic features that cannot be altered through amendments by Parliament. The doctrine allows the Supreme Court to strike down constitutional amendments which alter this ‘basic structure.’ In the Minerva Mills case, the Court laid out that what is basic is to be determined on a case-to-case basis.

Long ago, there was no friction; originally the Supreme Court had held the power of Parliament to amend the Constitution as unlimited. However, in the Kesavananda Bharati case, in 1973, it ruled that while Parliament has ‘wide’ powers, it did not have the power to destroy the basic elements of the constitution. Although Kesavananda was decided by a wafer thin 7-6 margin, the basic structure doctrine has since gained widespread acceptance. Fair enough.

The Court’s argument in 1973 was that the elected representatives could not be trusted to act responsibly. While it initially created a brouhaha, the Emergency proved the fear right. This gave birth to the basic structure doctrine , which has been the cornerstone of the Constitutional law in India. Indira Gandhi didn't like it one bit and she took her revenge by promoting Justice A N Ray, a dissenter, to Chief Justice superceding three senior Judges. At that time Justice M Hidayatullah remarked that "this was an attempt of not creating 'forward-looking judges' but 'judges looking forward' to the office of Chief Justice.” Again fair point.

The petitioners who wanted the NJAC thrown out argued that the amendment is a brazen attempt by the Executive to grab the power of appointing judges. Such shift of power would enable packing courts with persons who are unlikely to be fully independent. The procedure for appointment of the judges is an important element in nurturing an independent judiciary. This would be coloured if the power moved to the political class. Apparently the court found merit in these arguments.

But there is the other side, to which we must move.

Is Parliament a lame duck?

The NJAC was established in August 2014 by passing the Ninety-Ninth Amendment to the Constitution. The Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both bills were ratified by majority of the state legislatures and the President gave his consent on 31 December 2014.

Has the Apex court not acted in spite in refusing the collective will of the people is what many wonder. Remember, the Court was sitting on judgment over an issue in which it had a vested interest. The lone dissenting judge, Justice J Chelameswar, giving the dissenting judgment, was scathing in his observations and upset at the judiciary acquiring overtones of authoritarian traits in the pretext of protecting the ‘basic structure’ of the Constitution.

Pooh-poohing the threat of the Executive overtaking control, he pointed out: “the Executive may at best make a proposal through its representative in the NJAC, ie the Law Minister. Such proposal, if considered unworthy, can be rejected by the other members of the NJAC.” He had a point. After all, the judiciary representatives in the NJAC– the Chief Justice and two senior-most judges – can veto any name proposed if they do not approve of it. Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through. The dissenting judge added: “to wholly eliminate the Executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people.”

Tyranny of the unelected...

Finance Minister Arun Jaitley, himself a lawyer, was more scathing. On Facebook he wrote: “The judgment has upheld the primacy of one basic structure - independence of judiciary - but diminished five other basic structures of the Constitution, namely, parliamentary democracy, an elected government, the Council of Ministers, an elected prime minister and the elected leader of the opposition. This is the fundamental error on which the majority has fallen.”

He added: “the Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger. Are not institutions like the Election Commission and the CAG credible enough even though elected governments appoint them?”

While Jaitley may have had a point in his claim about the Chief Election Commissioner and the Comptroller and Auditor General, the point is that these offices have come under the firing line from his own party. Another sad fact is that Jaitley conveniently forgot that he himself was not just ‘unelected’ but, worse still, a ‘defeated’ candidate, who came to be a minister through the backdoor. Remember, he didn't even show a semblance of a mourning period, walking into ministry within days of losing, thus clearly slapping the electorate on its face.

Jaitley coarsely added: “if one leader feels that there are dangers of emergency, there is no presumption that only the Supreme Court can save it. When in the mid-Seventies the Emergency was proclaimed, it was people like me – the politicians, who fought out and went to prison. It was the Supreme Court that caved in and, therefore, for the court to assume that it alone can defend the nation against Emergency, is belied by history.”

It is this arrogance of the political class that civil society needs to be guarded against. The man conveniently forgets that the Supreme Court’s verdict is final, just as it is for the several judgments that have gone in his party’s favour after the 2014 elections.

Thankfully, the government has so far accepted the Supreme Court's verdict, and not thrown more tantrums.

Are Indian courts efficient?

Aside the issue of who should frame law and of the need to have an independent judiciary, there is this issue about efficiency. Should our courts not be efficient? Staggering number of cases are pending before the Indian courts. That's not a thumbs up for efficiency.

Courts commit errors in computation, their benches render conflicting decisions and they are both slow and tardy. As Arvind Datar, senior advocate, told me in a different context: “the most important task is to ensure that the judicial output of each judge is doubled or tripled, especially in the subordinate judiciary. In the near future, it is impossible to double the number of judges. The only way to dispose cases is to ensure that each judge disposes twice the number of cases than he presently does.”

In recent years, scandals about lack of integrity have besmirched the reputation of the judiciary. Judges are reportedly bribed. Court personnel are paid to slow down or speed up a trial. Corruption reached the doorsteps of the Apex Court when lawyer Prashant Bhushan stated in court: "of the last 16 to 17 Chief Justices, half have been corrupt.” There have been allegations that judges with doubtful integrity were elevated within the higher judiciary. In 2011, Soumitra Sen, formerly of the Calcutta High Court, became the first judge in India to be impeached by the Rajya Sabha. The charge: misappropriation of funds.

M ‘Maverick’ Katju, former judge of the Supreme Court, openly spoke of a judge whose integrity was supposedly suspect. Katju said that he was asked by the Chief Justice of India, Justice Kapadia, to find whether the judge in suspicion indulged in corruption. Katju got three mobile numbers of the agents through whom the judge was taking money. Katju gave these numbers to Justice Kapadia and suggested that he got these numbers tapped. Two months later, Justice Kapadia allegedly told Katju that the tapped conversations revealed the corruption of this Judge. But nothing further happened.

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Judicial paranoia or political overreach?

The Supreme Court has proved that it does not fear to assert its views even if it means wading into a raging controversy.

The upshot of this judgment lies in what Justice Kurian Joseph, one of the five who heard the case said, “if the alignment of tectonic plates on distribution of powers is disturbed, it will quake the constitution and once the constitutional structure is shaken, democracy collapses.”

The Executive would do well to mind its business and mend its way. It should show urgency in initiating and implementing Lok Pal in the strictest sense in every Indian state. It must look seriously at delivering on its promise of making the CBI autonomous. It should focus on development and on bringing black money to India. It should focus on keeping every organ of the country independent and fearless.

The judiciary on its part should expedite hearing cases, work with efficiency and clean the Augean stables. It should fill up the vacancies, ramp up the number of judges and have judgments delivered expeditiously. If the two stick to their respective jobs, we would travel a huge distance. Arun Jaitley will do well to work on economics and finance instead of turning a Facebook fan. Ravishankar Prasad could focus on deleting outdated laws and modernising the relevant ones. The chief justice of India should quickly fill up the vacancies, push the judges to sit extra hours, ensure that the judiciary works on two shifts and bring a semblance of method to the madness that today prevails in the corridors of justice.

The police-lawyer confrontation

I have observed a certain possessiveness and assumption of authority on the part of many lawyers. Accustomed to dealing with submissive clients, it has been extremely difficult for many of these to tolerate, leave alone appreciate, a different point of view. This attitude progressively expanded and transgressed limits in which many of them had scant regard for the police.

On 19 February 2009 one witnessed the worst of such confrontation between the lawyers and the police. The police station inside the High Court premises was set on fire and precious records were burnt. There was a free for all with groups of lawyers throwing stones at the police and the police retaliating.

The Sri Krishna Commission appointed to look into this tragic event gave a vague report. Senior police officers were charged with failure to rein in. The tirade against senior police officials rendered the law enforcement mechanism weak. The situation was allowed to continue for another six years, liberally extending to Madurai branch and dozens of subordinate courts and the lawlessness of some of these deteriorated to horrendous extents.

IE has had the experience of the long course of justice. In 2001, a business leader filed a case for defamation for our remark that his company was badly managed with poor industrial relations and dealer interface as well as a quarrel among the family members that owned the company. We pointed to the high reputation enjoyed by the company’s brand for a couple of decades, but poor management and inbreeding taking the company towards decay and sickness.

For seven years, the case was not even taken up. Over the next two years there were 72 listings of the case. In most of these, the appellant would not turn-up or would seek adjournment. All that was involved was the examination of the appellant and two witnesses of the defendant, and these would have been completed in a few hours.

The recordings in the court extended for over a year. On a typical hearing, the busy lawyer for the appellant would not turn-up in the morning. The lawyer would turn-up around 3.30 pm and the case would be dealt with for some 30 minutes and adjourned.

The Single Judge dismissed the case, but the appellant went on before the division bench. Here the story was replayed in its adjournments. Of course, the Division Bench also dismissed the appeal. Sadly, it took around 11 years for this case, which could’ve been finished off in a week or two. Sadly our prediction came true. The company went downhill, came under BIFR, and was wound up.

- V Pattabhi Ram

TN: Welcome effort to restore discipline

The Madras High Court had earned a great reputation for the brilliance of its legal luminaries, both judges and lawyers. In fact, the reputation was so high that the MHC lawyers were in great demand for representing cases in other high courts and in the Supreme Court. This tribe has rapidly vanished. Aren’t we witnessing the import of lawyers from Delhi, Mumbai and elsewhere to argue cases of our political leaders?

The recent tough actions taken by Chief Justice S K Kaul and some of his colleagues in the MHC promise to bring some order and discipline in the court’s premises.

The induction of a large number of lawyers with little equipment, capability and training has contributed to a unhealthy divide between a small number of lawyers at the top who have lion’s share of lucrative briefs and the large number of grossly under-employed lawyers with little briefs and incomes. This has led to divisions of Tamil Nadu on caste, political, regional and local lines. There has been increased reliance on patronage by the government, both Central and the state, for appointments and briefs leading to sharp divisions on political lines.

The patronage of the two leading political parties, AIADMK and DMK, which have been assuming power alternatively over the last 25 years, has sharpened the divide. Add to this the factions contributed by other political parties like PMK, DMDK, MDMK, Communists...These divisions begin right at the law colleges and continue with greater vigour at the courts. Strident demands for reservations right up to the appointment of judges were made; in this the detriment for success in arguing and winning a case has been given the go by.

Conditions reached such limits that Chief Justice R K Agarwal in his farewell address on remitting office had this to say: “Believe me. Many of my colleagues here have privately expressed their desire to seek transfers to other high courts voluntarily. In my career of more than 37 years, nobody, be it my friends or foes, had ever raised their voice while talking to me. But here on one fateful day, a respected colleague hurled invectives at me and cast aspersions at the affairs of this court… I was deeply pained to see some of my rakhi sisters being in the forefront of the unfortunate events. I request all of you to think twice before taking such a step… Do not cut the tree of the branch on which you are sitting. Remember the respect, status, reputation got in the society was all because of the great institution… It takes years to build a reputation and only a moment to destroy it. The danger is from within and not from outside.”

Succession of chief justices failed to correct the malaise. Thus the agitations continued and culminated in a daylong dharna even in the Chief Justice’s court.

Need for adjournments’ efficient management

There is a strong case for the Madras High Court inviting a management consultancy to streamline its functioning. Look at the course in one of the dozens of benches hearing appeals and writs!

Some 60 cases are listed for a day. In practice, there is hardly time for discussion on two or three cases in a day. Around 150 lawyers representing the appellant and the defendant would be present from 10.30 a.m. These are apart from the 120 odd litigants, assuming one for each side. Till lunch time, the judges give a stay and just a couple of cases are taken up for arguments while others are given fresh dates. Look at the colossal waste of time involved.

Lawyers have a vested interest in prolonging a case. With increasing cost of litigation the system seems to be of the rich, to the rich and for the rich. Lack of transparency and clarity in laws will result in large volume of litigation by the government. Remember legal luminaries like N A Palkhivala obtaining stay on huge demands of excise duties in the 1980s and 1990s? The demand on ITC alone exceeded Rs 800 crore on stock transfer to warehouses on low values declared at the factory end.

IE, the business magazine from south was launched in 1968 and pioneered business journalism in south. Through the 45 years IE has been focusing on well-presented and well-researched articles. When giants in the industry stumbled to keep pace with the digital revolution, IE stayed affixed embracing technology.